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Is Plain or Standardised Packaging for Tobacco Products a Harbinger of the Future Facing Fatty Foods, Alcohol Products and Sugared Drinks?

13 November 2018

Mayer Brown Consulting (Singapore) Article

On 31 October 2018, Singapore’s Ministry of Health issued a proposal to introduce plain packaging for tobacco products in 2020. This came on the heels of the June 2018 World Trade Organisation (WTO) panel findings on the consistency of Australia's plain packaging regulations with WTO rules. Brazil, Chile, Panama and Ecuador are also considering instituting plain packaging requirements while France, the United Kingdom, New Zealand, Norway, Ireland, Canada and Uruguay have already adopted such measures.

What is plain packaging?

Plain packaging, or more accurately standardised packaging, requires the packaging of all tobacco products to:

Use a standard background colour determined by the government authority;

Print the brand name only in a mandated font, size and position; and

Display other government-mandated information, such as health warnings and tax stamp.

All distinguishing brand markings, such as logos and trademarks, are not permitted to be placed on the packaging. In other words, tobacco products, regardless of the manufacturer or brand owner, will all have the same standard appearance, indistinguishable from one another.

Why plain packaging?

Proponents of plain packaging argue that eye-catching colours and appealing designs on tobacco products attract new customers – including non-smokers and youth, promote tobacco brands, and distract consumers from the health warnings. Plain packaging will thus remove the attractiveness and appeal factor, and make health warnings more noticeable and effective. In other words, plain packaging is marketing placed on its head; with plain or standardised packaging, tobacco products will be visually uninteresting and no longer appear "cool" to consumers, ultimately leading to a change in smoker attitudes and behaviours.

Will fatty foods, sugared drinks and alcohol products be next after tobacco?

The string of successes in fending off legal challenges against plain packaging regulations on tobacco products, at the International Centre for Settlement of Investment Disputes (ICSID),1 the Permanent Court of Arbitration (PCA)2 and the WTO may embolden health authorities in regulating other types of products, such as alcohol products, fatty foods and sugared beverages, for public health purposes.

Tobacco has already led the way in terms of taxation and health warnings. Most countries have an excise tax on tobacco; a few are starting or considering imposing similar taxes on sugared products. For example, the Malaysian government just announced a new excise tax on "sugar sweetened beverages" in its 2019 Budget, while the UK tax has come into effect in April 2018. There are calls for countries to adopt tobacco-style health warning labelling for alcohol products. Indonesia is reportedly considering plans to introduce plain packaging for alcoholic products (but such action appears to be in retaliation against Australia’s plain packaging tobacco regime, as Indonesia is a major tobacco manufacturer).

Given the increasing concerns over obesity, diabetes and heart diseases, public health advocates may see plain packaging strategies as another powerful tool to influence consumer behaviour. However, tobacco plain packaging has international (and legal) backing under the World Health Organisation (WHO) Framework Convention on Tobacco Control, without which such measures may not survive challenges at the WTO, ICSID, the PCA, or in domestic courts. Interestingly, a key area for priority action under the Work Programme for the United Nations Decade of Action on Nutrition (2016 – 2025) is the creation of "safe and supportive environments for nutrition at all ages". Here, regulatory and fiscal tools, such as labelling, taxation, subsidies to promote healthy diets and incentives to supply healthy foods, are identified as necessary to achieve a healthy food environment. Currently, efforts are largely centred on taxation and pricing policies for sugar-sweetened beverages and foods that do not contribute to healthy diets. Tobacco control also started out with taxation and prices; it may yet show the way to plain packaging regulations for sugared or fatty foodstuffs.

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